Gresham College Lectures

Medical Experts in the Family Court: Where Two Worlds Collide

January 25, 2023 Gresham College
Gresham College Lectures
Medical Experts in the Family Court: Where Two Worlds Collide
Show Notes Transcript

How does everyday medical practice get interpreted in the courtroom?

In cases of child protection, do everyday decisions made in a resource-limited NHS stand up to cross-examination? Does the duty of care in hospital also extend to collecting evidence, and are the obligations of the doctor looking after a child different to the obligations of the expert commenting on them in retrospect? How does this affect the number of medical personnel willing to come forwards to give expert evidence?


A lecture by Jo Delahunty KC and Owen Arthurs recorded on 19 January 2023 at Barnard's Inn Hall, London.

The transcript and downloadable versions of the lecture are available from the Gresham College website: https://www.gresham.ac.uk/watch-now/medical-family

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- You've woken up to give your young baby her middle of the night feed, but something's not right. Your baby's breathing seems labored and she's not responding to you. You change her and you try and give her a feed, but she's still not responding. You call an ambulance and you are both taken to hospital. As you arrive there's a flurry of activity and you are told your baby is very unwell. At first, the doctors and nurses appear sympathetic, but over time their tone becomes harsher. There are a lot of whispered conversations just out of your earshot. Eventually a senior doctor comes to speak with you. Not only is your baby in a critical condition, but the medical staff have found evidence of what appeared to be non-accidental injuries. The doctor says it's early days and there are a lot more tests to to be done, but they're asking you whether you've done anything to her. How could you have done? Your baby is much loved and wanted, you wouldn't dream of harming her, nor could you imagine that anyone else would do so. But the questions continue. Have you left her with someone else? Has there been an accident? The doctors become police officers and social workers, but the questions continue. You have no answers. Sleep deprived, frightened for your baby and confused. The next you know the social worker tells you there's a court hearing tomorrow and you need to find yourself a solicitor. The local authority is seeking orders to remove your baby from you and her older brother, who's currently perfectly well at home. Well good evening, and welcome to the family justice system. That's the system that decides what happens next. Indeed decides whether your children remain in your care or are to be separated from you, perhaps permanently. Indeed, whether they're to be adopted away from your family. And that is in many ways the subject of this evening's lecture. If I ask an audience such as yourselves, which of the following three scenarios you would least want to happen? I think I could predict the answer. Let me give you the three scenarios. Scenario one is that a business colleague starts civil court proceedings against you and as a result of that, you lose all your money and become bankrupt. Scenario two is that you are prosecuted for a serious criminal offense. You are convicted and you are sentenced to prison for 10 years. Scenario three is that your much wanted and loved baby is subject to public law children proceedings and is permanently removed from the care of yourself, the care of your partner, the care of your family, and is adopted into a new family. My bet is that most of you would prefer scenarios one and two to scenario three, however difficult they may be. Again, welcome to the family justice system where literally the stakes could not be higher. And who better to introduce you to the world of non-accidental injury within the context of the family justice system than two extremely well-known and experienced professors. Professor Owen Arthurs is a pediatric radiologist at Great Ormand Street Hospital and Professor of Radiology at UCL. He's widely recognized as one of the world's leading clinical researchers in children's imaging and has led the European Society for Pediatric Radiology Research Committee since 2016. Owen is also co-chair of the London Regional Group of the Family Justice Council and therefore leading the work to ensure that more experts are prepared to work within the family justice system. Professor Jo Delahunty KC is a distinguished silk practicing from chambers at 4 Paper Buildings. She was called to the bar in 1986 and took the silk in 2006. She's been a recorder since 2009. She's a bencher of Middle Temple and was a Professor of Law here at Gresham College between 2016 and 2020. She was awarded the Freedom of the City of London in 2019 for her contribution to law. Jo specializes in cases involving the most serious of child abuse allegations and has been involved in many of the most high profile cases within the family justice system. She also acted on behalf of the 77 families in the Hillsborough inquests. These are two fascinating speakers and a fascinating subject, and I'm very much looking forward to their talk. Owen, Jo, over to you.- Thank you.- Thank you very much.(crowd applauding)- Alright, ladies and gentlemen, both in person and online, there's a lot to get through. We've probably got more slides than we can cover. There are going to be notes accompanying the lecture, but they are purely discussion points because the value of tonight is, we think, it's one of the first public opportunities for the experts, the medical experts, and the cross-examining lawyer to actually have an honest conversation about why we do the jobs we do, where the setbacks and pitfalls fall of what we do, how we each understand the work we do, and more importantly and finally, whether we think we are doing the right thing and whether the justice system is enabling us to do the right things in court. And so that's the unscripted part. And with no more ado, you can see the general areas we're going to cover and we'll see how far we get. But we are quite clear that we are here to answer your questions at the end, whether online or in person. And this is the first of a number of conversations we want to happen both with you and with the press and indeed with those who control our working environments. Right. Owen?- No, absolutely. So we work within a system that has flaws. We know there are many flaws in the NHS. We know there are many flaws within the family justice council and the system that we're trying to do. So we're trying to do our best with the limited resources. So the question is whether the system is currently working and who the system should be currently working for. We very much see the cases that we deal with, is almost like practicing medicine, whereas you get pieces of a jigsaw. You don't always know what the pieces are. You don't always know what the final jigsaw puzzle looks like. When you are practicing medicine and trying to look after somebody, you get pieces of the jigsaw, if you like, piece by piece. As time goes on, more things are found. And the other reason for the other slide here really is just to say that we are aware that what we see is the tip of the iceberg. We deal with a small number of cases of which there are many more in the community. We struggle to perhaps recognize and deal with all those that we don't see. But we are trying to do the best for those that we do see within the system. So what happens and why? You've heard one of the typical scenarios that happens presented in a very emotive way to get your attention. This is often what happens and we'll go through this quickly. So if a young child is injured or dies whilst they're in the hands of a parent or carer. So this term is used, non-accidental injury. It means suspected physical abuse. There can often be a traumatic insult and we think that it's trauma that we don't know what's caused it. And so parents of carers, as well as everybody else, are suspected. The key issues here are that the child can't tell you what's happened. Children are either non-verbal or they can't point to where it hurts on the body. So particularly young children and babies. And the parent or whoever's looking after them won't or can't say what has happened, either 'cause they don't know or because they conceal what has happened. So then we move on. So how do we find out more about the story?- And that's when you start with the child's body, that's the basic evidence, whether the child has survived or whether they're dead. The body has a story to tell. So we look at the first outward signs. What do we see? Do we see bruising? Do we see signs of neglect? And then we go deeper. We look beneath the skin. So we look for fractures. We look at the head, we look at the skull to see if there's any bleeding. We look at the eyes to see if there's any bleeding. I want to say we, that's not me, that's the medics in hospital receiving a child not with a view to what might become a court case, but receiving a child because they need to know what to do to treat the child to stop the condition of it worsening. So the signs that we see in a child are only later put under the spotlight lens of the court and the expert. At the time when the child is first seen, the first imperative for the medics is what's happened? What can we see that should be happening and what else needs to happen?- So one of the key aspects that hopefully you'll understand from tonight is that a doctor or health professional looking after a child who's coming to hospital is in quite a different circumstances or a scenario to somebody being asked to review the case afterwards with all of the things that have happened and to try and tell a court what might have happened. So these are two very different approaches to effectively the same child and the same hospital having the same things happen to them. But one person is doing it prospectively as the whole story unfolds, if you like, and the other person is doing it with a very cold retrospective look at whether or not what happened was right or whether or not it should have been different. So that's one of the things we're going to talk about. And I like to use the jigsaw analogy because people understand what a jigsaw puzzle is. They understand the incentive of trying to complete the jigsaw. They understand that if you're given one piece by one piece, it'll be quite difficult to see what the bigger picture is. And equally, whilst they give you piece by piece, they might be pieces from a different jigsaw. How would you ever know until you start trying to piece them together? And there's a difference between doing that piece by piece and things unfolding versus here's the whole jigsaw puzzle, how do you think it was put together? So we don't presume any of these things. We don't force pieces to fit, not in real life or in a courtroom setting. We don't try and presume we know what the end result is going to look like. And we don't accuse, we don't judge people for what might have happened. We are trying to work out the sequence of events, the story, and different pieces come out as we go through that process.- Who's the we? The expert or the medic?- So here, we're talking about medics. We're talking about health professionals on the frontline with a child who's come to hospital, typically, even a GP, whoever has seen them, or a social worker, a teacher maybe who's noticed something and brought them to medical attention. These are all pieces of what will become a complex jigsaw. So a very brief timeline. There might be a 999 call, an ambulance coming and attending, the hospital swings into action, there are lots of health professionals involved, not all of whom you'll recognize or be able to identify. The parent will give an initial account of what might have happened and the child's account, either verbally or non-verbally in terms of what we find out about their body, the blood results, the imaging results which we'll go through. And of course the medical imperative is to treat the child. They might be near fatal, they may have died. There might be things we can prevent happening immediately and much later on down the line comes the question of whether or not there's a trial, whether we've documented the evidence and all the other things. So treating the child is, like I say, like a jigsaw puzzle. You're trying to piece things together and we often use things like this, a child protection body map. And we use lots of imaging to try and point out what's happened where. So these images, classical sort of suspected physical abuse images. So here is a skull fracture shown on an x-ray and a CT. Skull fractures don't happen spontaneously. They don't usually happen accidentally in small children. These are retinal hemorrhages at the bottom here. So these are examples of bleeding in the back of the eyes. They also don't happen spontaneously. And then there can be quite characteristic fractures of an upper limb or a lower limb. And here healing rib fractures. Each of these tells a small part of that story and that gives an example of the types of things we're trying to pull together. So the whole series of people who might have looked after the child in that story. Health visitors, the GP, the pediatrician, radiologists, lots of experts in their medical field. And then of course when it comes to the courtroom setting, there might be an equivalent number of experts who are called to give an opinion on those situations. So why is that?- Well the first clue. Can you there's a star on the slide about the pediatrician?'Cause you can see some professions being both under the treating medics and the expert witnesses. Now when you're in a hospital scenario, the first person you're likely to see is a pediatrician because they have to look, assess, and then give orders for who else should do the particular specialist work in relation to the child's investigation of injuries. That's very different from a courtroom scenario where the pediatrician is the last person to review all the individual specialist reports.'Cause we need the pediatrician to put the pieces together. And we ask the question, and you may ask the question, why do we have separate bodies? Look at the left column. You know, you've got the pediatrician, the radiologist, the ophthalmologist there and there you are with the same disciplines appearing on the second side of the experts. And this is the first hit point of the lecture. All right? Because this lecture is not aimed at the basic person who's learning about the system, it's aimed at the issues which were only going to be talked about, honestly, when you get the likes of us in a public forum discussing where the pitfalls are. So the next point is why do we need expert witnesses at all, when in fact we've got all that skill base looking at the first column?- So you might be thinking this is a waste of time. Calling two lots of people to give an opinion on the same thing. That's a reasonable assumption. So let's look at what they actually do. So if you are looking after the child, you can be called to go to court to tell the court what you did. You'll be a professional witness in the same way as if you witnessed a car accident outside, you might be called to court to say, what did you see? So you will give that evidence. What did I see? what did I hear? What did I write down? And this is what I did. But that's all. So your opinion is already based in the fact. So I saw this child, I looked at the x-rays, I diagnosed a fracture and I relayed that back to the pediatrician looking after them. That's all you can say because if you're asked to review your own evidence, you're not in a position to do so'cause you're not independent, and you don't have all the facts as they unfold in the process of looking after a child. The way in which those decisions are made in medicine is very different to the way in which they'll be reviewed later on. So I hate to say it, I think there's quite a lot of things that happen in hospitals that might not stand up to court scrutiny. There will be perhaps corners cut, there will be corridor conversations, there are opinions and conversations that go on behind the scenes, not all of which are documented, but that's because sometimes medicine happens very quickly. You're making rapid decisions about what's best for the child. Should they go to intensive care? Who should be called? What's the next best investigation they need? They're not all necessarily recorded at the time. Sometimes they're done afterwards and then other professionals get involved, the police, the social services, lots of other people are inputting into this. So that's why I try and talk about a jigsaw puzzle with not all the pieces are known yet and things are unfolding. You don't have the benefit of hindsight as we sitting here reviewing a case might have. You are very much operating as things happen. So medics don't like going to court. They don't like being asked whether what they did was right or wrong. They don't like, some of these- They're worried about going to court even just as a witness to say what happened because what if they can't remember what happened? What if their notes aren't quite right? What if somebody asks you something you can't answer? What if somebody like Jo, looking at me like that, is going to come out with something that I can't address? So what if they get another expert who disagrees with me and says what I did was wrong? People are very nervous about being criticized in that forum. So it's easier not to bother. Do I have to go? Can I be forced to go to court? All of these questions start bubbling up, I dunno if you can respond to any of those, Jo. Do I have to go if I'm asked to go?- If you witness something we'd expect you to attend. And yeah, you'll be in court.- [Leslie] Can I just ask? As a clinician, how much time you would get to prepare for going to court as a clinical witness rather than as an expert witness?- So all the time you are asked to go to court as a professional witness, it's part of your clinical practice. So all the time you're doing that, you are not doing what the NHS needs you to do. So there's a conflict already between what you need to do for the family justice system versus what what you need to do for the NHS and what's your day job. The more of these children you look after, the more likely it is you're going to need to be writing reports and helping the court system. So there are some people who don't want to get involved in this work because they can see the consequences of where it might lead. How much time you're- To be fair, most of the time, the NHS workers and the system appreciate the need and the importance for this work. So you would be allowed time to go either in person to the court or time to write a report. Your reports are short, they're factual, that, "This is what I did as part of my normal everyday practice and that's all I can say that I did in this case."- Alright, so why do we need experts? We need experts because if you are prepared to be a medical expert, you've made the choice. One, to get the additional training and accreditation. Two, to be taught about what happens in court, what barristers do, what the judge does, what your responsibilities are when you are preparing your reports. And you've elected to put your name out there because experts can be named in publications, judicial publications. And it means that you are effectively putting your professional reputation out there out on the line to be judged by someone, literally judged by someone, the judge. And you don't have control over the process because you are one expert in a whole range that might be called, where you don't know the context of the other evidence that's going to be given. So it's a big ask. It's also a hideous amount of time. But the responsibility is huge, and why is it so huge? It's because when we need an expert, we need them because you are necessary for the court to make a decision about what's happened to the child. We don't want opinions from treating medics. And we come onto why that is, not because they're not valued as treating medics but because of the reasons which Owen said, we want someone to come in that reads the papers with hindsight and reads papers that the medics will never see. So an expert will come in on the basis that they'll be offered a bundle which contains all the medical notes. It'll contain the parent's statements, it'll contain the parent's interviews they've given to the police, it will contain other experts reports. It will be the best quality evidence we can give and sometimes that's woeful. But your responsibility is to go through it with a fine tooth comb, sieving out what's relevant to your discipline, answering the questions which are relevant to your discipline and not trespassing on someone else's, telling the court if actually they need to get another expert in because this is beyond your range of skill base, and then ultimately putting your conclusions in a balanced, neutral way with the research to back it up, in a report that is both comprehensive but succinct enough to be understood by the non-medics in the court. Now just going through that list, that's a big ask.- [Owen] It sounds easy, doesn't it?- Yeah. And then having done that report, you prepare the report on condition, you are prepared one, to go to an expert's meeting. So that's the first time you'll come face to face with the other experts that have been instructed, where there may be a lively debate about whether you are seeing fresh blood or whether it's old blood or where you're seeing traumatic acute effusions. Where the detail of the case is discussed. And that's a intellectually and factually demanding exercise on top of a heavy responsibility of clinical and expert practice. And if that's not enough, you have to come to court to be cross-examined. By me! Or by others, by Leslie. And that's a big unknown and it's a big responsibility which most experts will still say invests in them a sense of apprehension. It could be anxiety, but the not knowing, because you're being catapulted into a case that's in motion, not knowing what's happened before, not knowing who's going to ask you questions, not knowing if the judge is going to make sure you're questioned appropriately. And then after all that's done, you leave the witness box and you have no idea what's happened because you don't know what the judge is deciding. And that is a big ask, which is why for an expert to put themselves forward, they have to be prepared for us to scrutinize their CV. They have to be prepared to be criticized or questioned. They have to be prepared to explain. And that means they've got to be good communicators. So all of those skills are a marked difference from the treating medic in the hospital, even though ostensibly their CV's could be the same. Because you don't become an expert overnight and you don't do it without taking on that massive social responsibility of being prepared to do the right thing. That's why we need experts. So focused on the words necessity, and we'll skip along this, the thing that most people don't realize in the family justice division, I'm going to use the word justice'cause I'm going to come back to it at the end of this lecture. In the family justice system, when you instruct a medical expert, it is normally a joint expert. This is not shop along and get an opinion that you favor. Everyone in the court, that means the local authority who's prosecuting, the mother, the father, or the boyfriend or the family member, they'll all have their own representatives. The child is always separately represented. All of those who are parties or interveners in the case will need to agree on the choice of the expert. They then combine a letter of instruction and questions to that expert. And then whatever the report says, you are bound by it. You cannot hide an unfavorable report, you cannot dismiss an unfavorable report even when it's filed. You might be able to ask for a second opinion, but that's likely to be rare. So when you invest in an expert, you are investing the most trust and responsibility you can in the perfect person. And we have issues finding experts because there simply aren't enough. So we can move on, I think this one,'cause in time?- [Owen] And I think this is the right way around, isn't it? So this is what people are worried about. People are being worried, as you would be if you got called to court to talk about something, you would be worried that you are going to be, what is the term, harassed?- Bullied?- Bullied.- Intimidated.- Yes, exactly. All of the things that you least want to have happen. And there's a professional aspect to this as well, which is the one thing you really don't want to be harassed and bullied about is what you do as an everyday practice and probably are quite proud of what you do. So as a radiologist, I'm supposed to be quite good at looking at images. So for somebody to turn around and say,"Actually, you are not very good at doing that," it's not just about doing that in this case. There's a certain professional aspect to that which people take to heart. And of course one of the things they don't want to do, therefore, is expose themselves to this system. Why would you? I think that's part of what we want to talk about. Why would you do that? Why do we need experts in the first place? And hopefully we've convinced you why experts are different to the people who are looking after children in the first place. They have a different role and they are are providing a different level of knowledge to the court. But why would you want to do this? The reality, maybe, is a bit more like this, is a little less adversarial, perhaps.- [Jo] I'd like to say it was a lot less. So I chose that image with the rottweiler because sometimes, just in the same way it can feel like that for the parents, it can feel like that for the experts or the medics because they're going from the medical field where they're very comfortable. The hospital scenario where they're very comfortable into a courtroom scenario which is not their home, that is mine. And they're going into an environment where they lose control. And we are talking about medics and experts who because of their qualifications and skills are used to being in control and it's very hard to relinquish that. So the natural fears that a medic might have that someone like me would be a rottweiler with red lipstick and attacking them in court.- We'll put that back up.- Yes. Is not the way actually we run cases. Sometimes that might happen but that will be through a lack of control of the advocate or the lack of control of the judge. This is what I do. What I do when there's an expert in the box is I pull together all of the knowledge I have from the papers that the expert doesn't have, or if they do have, haven't given them the attention that has been brought out by our cross examination. Okay, head tip, any of you who are lawyers. You never, ever, ever have an expert as the first group of witnesses. Invariably, someone suggests that happens because that means you can give the experts the agreed slot where there's less chaos and delays. Never do it. Why not? Because that's no different from you simply asking them questions about the reports. Experts don't come to court only to be asked about what they have written. Experts come to court to have the factual matrix upon which they've given their written opinion, tested against the facts that have emerged in the course of cross-examination of the other witnesses. So for example, for me, getting evidence from the family members or the health visitor about the child's stage of development is really important. Getting a sense about how the household dynamics works is really important. Wanting to know how adequate the notes are of the medics upon which the experts have relied is really important. For example with retinal hemorrhaging to the eyes, if there's been no photographs taken of the eyes, then already what I've got is simply a description and a drawing of an orb with a few dots on. Already you have subjectivity coming into that evidence because in the heat and motion of the hospital ward, how many dots did they do? Does the description of the notes match the eye diagram? And without the retinal imagery, you are already relaying that to an ophthalmologist expert who's going to be basing their own assumptions on what might be an inadequate or incomplete note. I can't put that point unless I've had that factual, medical and community evidence called in front of me to put the point in order to prove the forensic case to put it to the experts. So the value of an expert for me is not to simply come to give me the opinion they've already prepared in writing. The value of the expert for me is putting all of these possibilities and probabilities and trying to get the expert to consider a hypothetical, in some situations, but in others a established, factual matrix that is very different from that which they have read in the papers. And the best experts, and we have so many good ones, the best experts like Mr. Cartlitch or Mr. Jeremoin, or Mr. Richards or so many of the others in the sphere, they follow the story. They recalibrate the emphasis they've placed on the written records with what you are telling them about what's changed. That is the real dynamic that happens in court. So it's not him against me. It is a conversation, a respectful conversation, where the judge is the ultimate moderator, where it's a process of advancing argument and persuasion. That is what is so special in terms of the particular dialogue in a family court. And the reason it's so special is unlike in the criminal arena, we don't have our own experts by our side. We don't have the option to call a friend. All we have in the family court is our own wits, the intense amount of preparation we do, which means we know what the data is and what the factual lives are, and we combine that, on our feet, in real time. There's no pause button. In order to have an exchange with the expert, we're ultimately, even if you disagree, there's a respectful dialogue between you. That's what coming to court is about. And that's why experts are so invaluable. And that is why they have to come to court to answer questions. It is not simply to repeat that is what is written. It is there to engage in a proper dialogue because their report is nothing more than the stepping stone upon which they can then guide the court using their expertise.- Now that's a really interesting point because from my point of view, I would think, well, I've written a report, everything's in the report, that's it. I'm done. Why do I need to go to court to to explain it? I've written quite straightforwardly, this is what happened. I've contextualized the problem, I've done all the things you've asked me to do. The last thing I want to go now is to go to court, to be harassed and to be questioned on essentially on the things that I haven't written or haven't said. So you are looking for the gaps in my report that I can't see that are there. So I think I've been as comprehensive as possible and somebody says, "That's brilliant. Can you come to court to talk about it?" No, that's exactly what I don't want to do. So there is a problem here with... So therefore the court arena, because it's not familiar to medical staff and it's the place they're going to get questioned, there is clearly an issue with people wanting to volunteer to do that. And we have fewer and fewer people thinking that's a great place for me to be and that's really where I want to do, where I want to practice. So what happens if we don't engage with the process from the medical point of view? Actually you then get rogue experts, you get people from other disciplines commenting on things and you get people from abroad coming and giving alternative views.- Yeah. I've got to do- So Dr. Google is a really great rogue expert, can I just say? There is nothing worse, in my professional life, than a client coming to me towards me and saying,"I've got this report, I've got it from," I don't know, I won't mention the country'cause it might demean the country,"But I've got it and it says nothing happened. All right. I've got brittle bone disease, temporary brittle bone disease." And you look at it, you think, oh god. Because there's already a really good reason why we go for experts that have got a CV with citations that we can respect. And that's because it's too important for it to be handed over to someone with a particular agenda, either in medicine or professionally because that's not helping the court ultimately to understand what happened to the child. And from whatever perspective we come from, whether it's the barrister or the expert, we are guided, believe it or not, by the child's welfare.- So if you're qualified, experienced, and independent, you could be an expert. And this is why the treating clinician, if you like, probably can't be the expert because they're not independent. They were involved in the case, either emotionally involved or, you can't criticize your own behavior in an independent fashion as to what may or may not have happened or what maybe should or should not have happened. So this comes down fundamentally. So why bother at all? Why be the experts? Why be the lawyer? So I think this is down to fundamentally trying to help people. We think we have expertise which could be useful. We've studied hard, we work in everyday practice in this context and we're able to tell the court, or whoever is interested, these are the typical things that go on in this hospital, in this type of circumstance. These are the typical things we see and this is how we typically manage them. Because we do that on a day-to-day basis, we have expertise, and I think that expertise is useful to try and contextualize particular events that we're being asked about in court. So how often does this kind of head injury occur in your normal everyday practice? How often do you see this kind of fracture in your normal everyday practice? It's really useful to contextualize. So we think we're useful. The day we stop being useful is the day we'll stop going.- I mean, I do it because if you want to be a legal aid barrister, as I am, specializing in child abuse law, I could earn more money by doing private law. A junior in chambers of two or three years call can earn more going to court for an hour than I get paid in the day in a dead baby case. Okay? That's the way the money is. So I don't follow the money. I follow the reason why I came to the law in the first place because I genuinely want to do something that recognizes that the skills I have, which came from a background which is non-traditional, had been given to me by the state. I had a state education. I was brought up by state welfare. I don't think it's right that if you have money and advantage, that you have an opportunity to do things that others don't. And so when I came to the bar, I wanted to be involved in an area of law that rebalanced some of those inequalities. So of course the area I'm drawn to is child abuse law because out of all the vulnerable members in our society, the child is the most vulnerable. And then beyond that, the units around them. So I'm a child abuse legal aid lawyer because I think it really matters. And therefore, despite the stresses and strains, I do it day in and out and there are stresses and strains that are almost unimaginable at times. And so when you see us here on our stools, I wish I had Dave Allen with a bit of whiskey by my side, but that will happen later. But when we are here, it's because we genuinely think that what we do is important. It doesn't make us important, but the job is important. And that's why despite the stresses and strains, it's important for us to come and explain what we do because there's so much misinformation and misunderstanding about what experts do, what medics do, and what barristers do. When fundamentally if we're engaged in the family justice system, it's because we want to do right for as many people as we can do and to give the judge the information they need to do right by the majority.- And one of the terms we use is the voice of the child. So the mother can represent herself or can get legal representation, as can the father or stepfather, whoever's involved who speaks on behalf of the baby, who tells the court what's happened as far as the baby is concerned. Only the medical professionals looking after them can present some of that, and only really experts who are independent can contextualize some of that for the benefit of the court. So there are less and less people now trying to do this work. Volunteering to do it and coming forward to do it. I won't go into the details of why there are fewer people doing it. We're trying to train more people, help people get into the system. But one of the critical parts of this is that delays in finding experts leads to delays in cases being heard. And the impact of a delay of a child not, or the case not coming to court, is that what do you do with a child in the interim? So the safest thing to do, of course, and safeguarding children is what we're all about here, the safest thing to do is to place them in a different situation until you can resolve all of the facts. But how long is reasonable to do that? Three months as an interim measure until a decision made, that's fine. Six months, nine months, 12 months in foster care? And maybe of more than one sibling? So there's a balance here between how many experts we have, how involved they can be, how many can come to court, how long it takes to read all the information and the reasonable delay that that causes in a trial.- Yeah. So just to conceptualize that, if we are thinking about there being a court hearing from the point that the child goes into hospital to there being a decision about whether the concerns about the injuries have been resolved of, 26 weeks let's take for example. Then every day in that child's life is a year, or many, more because a child can learn to walk in a day and the parent misses it. A child can speak for the first time and the parent misses it. The child ends up attaching to the person that's bathing it, feeding it, dressing it, loving it. And for all of that time, if in fact the child has been wrongly removed from a parent, they're losing the chance to be with that baby and form the relationship. So you can't take a delay of a week or a month lightly in relation to a child's timeline because they run where we just potter and meander. So delays really matter. But if you are in a case where there's a complex injury and you're trying to unravel from the child's body what's happened, that's happened, there's a real tension isn't there? Between getting the right quality evidence to come to the right decision.'Cause if you don't, that temporary loss of your child, of six months or thereabouts, may become a permanent one. Place for adoption. And then God, you want that time back. So that tension between how long it takes to get the best quality evidence between how long do we leave a child languishing, potentially, in care, forming relationships that then have to be severed if they're to be moved back to the family, or then severed if they're to move onto adoptive home is not a calendar that we can forget. So I've grown up, and Leslie has grown up, with a system of family justice which we call the Rolls Royce system. It was where getting the right evidence and discovering the truth was why we came into the work we did. This quote is really important and it's by someone who's a bit of a hero to many of us because it's one that still guides our practice."A court hearing an application of care orders based on suspected physical injury must follow the evidence and pursue the inquiry in whatever detail and for however long is necessary to arrive at the truth." Three phrases there I want you to hold in your mind for when we come back to them at the end of this lecture. Must follow. Not may, not if it's convenient. Must follow the evidence trial. Secondly, for however long is necessary in order to arrive, and thirdly, at the truth, That was 2013, where are we now?- So it's clear what the overriding imperative there is, isn't it?- Get it right.- So the consequences of removing the child inappropriately, they become secondary measures or secondary imperatives to finding out the key part which is the truth.- [Jo] And this is a quote, which I'm not going to read out because you can read and it's in the note I've given you. But what it points out is that when you remove a child from its family and you place it for adoption, you just don't lose that physical connection for the child. It is a legal severance. You don't know if the child becomes unwell or ill, you don't know if your child goes on to have its own children. You lose not just that child, but every part of that child growing into an adult's life. That's why it's so serious to get it wrong. And that's why I'm worried about this. Rolls Royce versus a trotter van. Because if we cut corners, it's still a car, right? It still goes, sometimes.- But you might not want to go to your wedding in it.- Yeah. And would you feel safe in it? And so this is the consequence we are now dealing with in terms of delays. When you look at your notes, you'll see some really graphic examples and they're most current, they're March 2022 and December. In this case the president was dealing with the consequences of an absence of experts in respect of a dead baby. It's a case where a child had been taken into care very early on, 18 months old, and there still wasn't the ability, by the local authority through the police services, to present the court with the most beginning of the reports, of postmortem reports. Not because the pathologist hadn't turned their initial report around in a really quick time, but once the pathologist has done that first review, they then send the samples off to be investigated by other specialists and then the specialists provide their reports back to the pathologist. So the pace goes at the slowest. Can you see what I mean? So you need all of the reports in before the first person to see the child then looks at everything to do with the child and comes to an overall conclusion.- And that's what you'd want, isn't it? For everything to be sent to the best experts and the best people who are going to give you the most accurate information? But when it comes to bone pathology, for example, you extract a piece of bone and say is there a fracture there? There's only one expert in the UK who does that.- One.- One. Why? Because it's voluntary. This is outside of NHS work. The system operates outside of day-to-day clinical practice as you would expect. But it may be that we haven't really resourced it properly or thought about the implications of people not volunteering to take on those roles. So this person works very hard, he does several hundreds of cases a year but you can't go faster than doing the best that you can. So the voluntary aspect of expert witness work is problematic. And I'd like you to just to consider yourself, so where does the responsibility for doing that work lie? Who should be volunteering and how do you make it involuntary? You probably wouldn't really want to make it involuntary, but whose responsibility is it to make sure we have a body of experts? Is it a medical responsibility? Is it the NHS, which is already under pressure and has waiting lists for things? Is there a family court justice imperative to make sure that we have experts? Is it society's responsibility to make sure we push these people forward even if they don't want to be? And what do the family courts think of that? So this is the head of the family justice system who says it's no longer an option that the family courts puts up with the delay, but what should we do then? Here it says that we shouldn't wait for a year for a post-mortem report to be done, in which case we should proceed without it.- [Jo] And he did.- [Owen] So what's the implication then of proceeding without an expert report on what actually happened?- And you have to think about what you might be missing.- [Leslie] Can I just ask, I mean, is there perhaps an argument for looking, again, at experts from other jurisdictions?- Yeah, I think so.- [Leslie] Because, why for example, should a renowned expert in Ireland or Canada or Australia be any less able to report in these cases if they're willing to, then an expert in our jurisdiction?- But we've got a problem in that because that's what that case resolved. And the issue is that the stages we're going through, so if a baby has died in suspicious circumstances, the first authority that takes charge of that investigation is the police. Only when the police have then gathered their information, decided whether to charge a parent and then release that information to the parent, can then the parent, with their lawyers, then interrogate the material that's been obtained and the family court comes a long way behind that system. So the issue that the president, in this case, was discovering, was rather elucidating upon, is that the samples that are taken from the postmortem have to have an integrity, a continuity of evidence chain. And so therefore there is a imperative that doesn't go outside of the control of the police investigation. So they won't release it. And there is in fact absolutely no protocol, ladies and gentlemen, for how you can properly exchange slides and samples between experts who aren't home office accredited. So you may have a superb expert in Ireland, but you're not allowed to have them access to the material because that's going to interrupt the chain of evidence in respect to the criminal trial. So you are absolutely stuffed.- And the idea that there are experts floating around in other countries ready and available but not in the UK is also mythical. I'm asked to give expert evidence in New Zealand or Australian'cause they also can't find, so this isn't a UK issue.- Overriding objective. I'm going to leave that because it's in your notes, but effectively it's how far, it comes back to the question Owen and I were talking about, how long do you delay a trial in order to get to the experts? Where's that balance to be lied? And you'll see in the notes, we go through those issues. What's the necessity? That's the key thing. Where's the cost, where's the proportion? One really interesting case, which is most current, is what you do when in fact you've got the experts there, but in order to have a hearing requires an excessive expenditure on a court hearing when the child, albeit under supervision, has remained at the home. I'm not going to go into the details of this, but the decision was even though the treating medics and the experts have said that the rib fractures were likely to be non-accidental and they weren't singular, the judge in this case decided that since the baby was at home and since the parents had done well under supervision, and since the parents, even if findings were found, wouldn't accept the findings, and even if they did hurt their child, it was likely to be a one-off incidence, which was unlikely to have happened, all without hearing the evidence. The decision was that you didn't need to have those nine days of court time and the local authority were guided towards withdrawing the case. Now is that right? Because the reason we have these investigations into things like rib fractures is that we see the tip of the iceberg. It's the dynamics between the carers that if the child has been held and shaken and may or may not have suffered injury, who knows, it's how that came to arise because if those dynamics haven't changed, then the child is in a situation of ongoing risk and we all know the difference between having a newborn between having a toddler with tantrums or the other issues. So is that the right way to do things? In order to make sure that we get through the cases as soon as possible? I don't have the answer, but I'm making sure you know that that is what is going to be a discussion that's going to be had in the courtrooms.- And this is the point, isn't it? Whether it's the process will do justice to the case. So is justice for the child or for the family the imperative? Or is it actually we need to speed things up a little bit because we've got too many things waiting?- Now this, remember I told you to hold those words in mind because if you compare the Baker decision of 2013 and then you compare it with what we have here, it's a question of looking about fact finding and it being proportionate and there's a particular quote here. I think it comes afterwards. Okay. Yep, next here. Next one. Okay. This is what's key, because what this judgment does is blows apart the concept that the court's inquiry is into investigating the truth of the outcome. Now, in many ways I absolutely see where she's coming from because there is a misconception that going to court means that through inquiry, you are going to arrive at the truth. Mr. Justice Hedley as he was then, hit it on the nail of the head. The judge can only make the decision in the main dependent on the evidence that is presented to them. They make the best decision they can, that may be the wrong decision, but they do it on the best quality evidence and they come to a decision based on that basis. Coming and arriving at an answer, which is the truth, is a concept that only the parents will ever know matches the reality of the situation. But nonetheless, for the child to know whether they are placed, for example, in adoptive placement because they have been seriously abused or whether the parents adjust to that outcome, that is about why the court system has to be robust and frank and full. And so this is the particular quote."It's sometimes argued in these circumstances," it's not sometimes argued. That was said by a very, very, very senior judge who's now in the court of appeal."It's sometimes argued in these circumstances that the parties and the child need to know the truth of what has happened. In this case, the benefit of finding out what happened is largely illusory. The child's too young, highly unlikely the parents would accept the findings. I can't see in justification for a nine day finding of fact hearing so that at some point in the future X can know the truth." Now in this case, the child remained at home. Think if that was reversed and the child had been removed in the absence of a fact finding hearing a place for adoption. Where does the truth and justice in that outcome lie?- And do you think there are inequalities in those cases in which this might be applied?- Yeah. I think what's happening now is that because cases are taking longer and longer to be determined, what used to be an aspirational aim, which was being achieved, I think back pre-COVID, probably 2015, 16, look at your notes, of trying to get the resolution of most cases, bar the very serious, resolved in 26 weeks, has now become entirely hopeless. You know, we're well beyond that. We're talking 72 weeks, we're talking any number of weeks. It's as long as any court system can allow and it varies from courtroom to courtroom. So now the real issue is when do we start to cut corners to make sure we bring cases down? Do we do the best quality justice for the majority by cutting things down to the bone? Is that good enough? Or do we run the risk in those circumstances of ostensibly thinking that a simple case, for example, there may be bruises to a child, there may be a single fracture, there may be nothing but the mother and the boyfriend in the house. It seems simple because she's not saying anything, he may have previous convictions. But it's not so simple if the mother's got learning difficulties and isn't able to properly explain what's happened. So her account has never been given. It's not so simple, if in fact you have data which demonstrates that she was out of the house at the time and therefore not only did she not harm the child, but there was a failure to protect because she wasn't there and she called the ambulance when she gets back. Ostensibly simple cases involving fractures may be the most fundamentally disadvantaged in terms of trying to get to a fair outcome because they look so cut and dry. They're the ones I'm worried about, not the ones I do, which involve dead babies or serious injuries because in those cases I'm very confident we will always be given the luxury of time and expertise, because they scream seriousness, which is why I'm in in the first place. It's the ones that don't cross that barrier, look simple, but may ultimately lead, not just to one child being removed, but a whole host of children removed because we know what happens in those cases. It's through the agony of loss of a baby the woman goes on to have another. And it's removed because the findings have already been made in the first and then she goes on to have another and another. Children after children removed on a cyclical basis if the first judgment that's given isn't given on a factually and forensically tested environment and changes aren't taken into account, they're the ones I'm really worried about. And I don't believe the trotter system, the van, is likely to be strong enough to carry those type of vulnerable clients through to the outcome they really deserve, which is a proper investigation into what, when, how, and why. That's why it's necessary to make sure we don't cut things down to the bones. And the reason this lecture is so timely is because of the pressure on the court system. We're already hearing rumors that the guidance being given out by local courts is to, let's not have experts if the delay in getting them in to poring the reports is so long. Let's have a treating medic. Why do we need experts? If we have an expert, why do we need them to be cross-examined? Ask them questions by paper. That doesn't deal with the issue I've just pointed out. There is no point having an expert come to court to ask them simply about that which you've already considered. They come to court to have the tested evidence put to them because that changes opinions and that changes outcomes. So there can be no diminution, I believe, in the right to put proper, forensically established questions to an expert because only by that way can we test their opinion, which is otherwise so critical to the outcome of the courts. That's why this lecture is so timely because it's starting to happen. To cut corners, we won't have the likes of Owen. And to cut corners, it won't be Owen that's having to explain to his profession why someone who is a colleague is now coming up to him saying,"You told me this wouldn't happen. Why am I going to court? They've told me they're going to turn me into an expert. I didn't sign up for that." Saying no is very, very hard. And as I say, we will witness summons if needs be. So where's the other hidden voice in this equation? You've heard mine, but where's the hidden voice of the medics who haven't volunteered to be transported into the world of tension and responsibility, which the likes of Owen have absorbed? So this has to be the place for that voice to start being heard because otherwise there's ineffective ways for us to properly identify what we need to do to make sure, we don't want the Rolls Royce, we can't have the Rolls Royce, but I do want to have a decent secondhand car who's not about to lose a wheel when it's gone around the corner. It's got to be fit for purpose and it's got to be safe. So ladies and gentlemen, I think we're probably covered why I particularly value having Owen's assistance here. And it's because without Owen being able to tell us what it's like at the coalface and what the real worries are of the medics he works with and why he's prepared to step beyond that role to become an expert in his own right, and then what's more, to come here and share a platform with me. That's why we need people like Professor Owen Arthurs.- [Leslie] Thank you. We've got time for a few questions. I've got a few online. I'm going to summarize one for you, which is this,"If we are not able to get the right caliber of experts to court and the effect of that is a lowering of standards and you get the unregulated experts or the underqualified, do you think the system will then be relying on opinions which perhaps sound plausible, but may then end up with a suboptimal outcome because a proper expert might have reached a different conclusion?"- Yes.- Right.(laughter) Yeah, so the short answer is again, yes, but that's not because I'm speculating on it happening, it's because it happens already. So we already get unqualified experts from other jurisdictions commenting on things outside of the area of their expertise. So for example, I'm a radiologist, but that doesn't mean, and I work with children, it doesn't mean that I can report a mammogram or somebody's prostate MRI or somebody's kidney tumor as an adult. But quite a lot of people working in those jurisdictions will be quite happy to give an opinion on a child's very subtle fracture, that if they worked in that scenario would recognize that it demonstrates abuse. So it's not speculation from my part. I come across those criminal trials where those experts are called and they give that evidence.- One more from the online and then I'll ask for questions from the audience. And that is,"Is there any way of checking an expert's CV?" In other words, how does anybody who is involved in the family justice system know whether what's reported in the CV is accurate or not?- I don't think... Is there way of checking the CV's? No, I think CV's are pretty much taken as read, but you can certainly check people's experience of things. So for example, if you're looking at images, how many of these images do you see on a day-to-day practice? How many times have you been to court before? How many times do you see this kind of abnormality? Is your opinion mainstream in terms of everybody else? Have you been to training courses on this? Do you deliver training courses on how to interpret these sorts of abnormalities? All those questions are perfectly valid and those who are doing those are quite happy to say,"Yes, I do those things. And that's what I do in an everyday practice." I guess the same question would be true of why do you need people, barristers, who are experienced in the family court to represent those people in the family courts? Why does it need to be a specialist? Why couldn't it just be anybody representing? Or why don't people represent themselves?- I think if you've got- I think maybe they're saying if you've got a fraudulent CV, how far do we go to check the context of the CV? I mean what we do, there's a very small pool, we all know one another. In the main, we know one another, both experts and lawyers alike. If it's fresh blood, we'd ask questions about how many cases they've appeared in, whether it's crime or whether it's family? We check their reference, we check their resource material they've identified. You ask around. So you don't take an unknown expert on face value. Precisely because we want to test out whether or not they are going to be someone who's going to be someone we can invest our trust and confidence in. That's what it comes down to.- But you want somebody who's familiar with the kinds of things that you are looking for? And this is where the retired expert becomes a little bit of a gray area. So somebody who does have, or did have 40 years of experience looking after children in these scenarios but no longer practices in day-to-day practice. So if you retired last year, I'm sure your experience is current and is still up to date. If you're retired five or 10 years ago, I think there are questions that can then be asked and put to you about whether you are up to date with the latest things.- It's really, just pausing on there. But it's really important for the expert we have to be directly in touch with what's going on in the day-to-day cases. They need to have clinical experience because the danger of being an expert in anything, whether you're a barrister or a medical expert, is the deeper into your profession you go, the more removed you become from some of the ordinary scenarios that can otherwise result in injury. So for example, it's really important if you know what's going on in an A&E site because we often cross-examine experts about it being a rare issue that's not noticed. It's not something that you ordinarily come across'cause you're already looking through a very particular lens of NAI. And so one of the other gifts that an expert has is they are prepared to say, we don't know. The anomaly cases are the ones which tend to push the boundaries of science quite rightly into areas that are already significant. Sorry Leslie, I know we're running over time, but can I tell you why that's important? When I started off and I was doing cases that involved allegations of babies that have been shaken and I would have blood in the brain of more than two ages. So it looked different colors, so both recent and old. And it was in different compartments. I would have decisions made by the judge that indicated the baby has been shaken, not just once, but twice. So that, for example, it meant that there had been a failure to protect,'cause you shook a baby once or you've been present in the home and that had happened, but you haven't picked it up and therefore, the baby had gone on to have a second injury. So children were removed from families not just because they'd identified a perpetrator, but the person who the court found hadn't done it was nonetheless responsible for a failure to protect. So they too were taken out the pool. We now know, and we've known since 2007, that blood at birth can happen and if you have blood at birth it can cause re-bleeding. There's lots of science around in what zones or what likelihood. But we know that once a baby has blood at birth, the likelihood of it re-bleeding later is increased. So it explains why you might have blood of two ages. And we also know that blood can move between compartments of the brain and with that old knowledge we have now, we know we will have removed children wrongly from families where the parents protested they had done nothing wrong. Now that's cruel. And that's why the best experts are the ones that are prepared to explore the evidence and at the end of it to say, I don't know. And prepared to say that these outliers of experience are the ones which need to have more research, rather than dismissing them out of hand. And that again is an area that only the expert can provide because the consequences of their decision and their opinion evidence is so profound.- So what you're saying is, that given that this is a critical area to get right and there are many aspects of this which might evolve slightly over time, this isn't a time to basically stop paying attention to those areas.- That's exactly right.- And to stop getting people to say, this is mainstream view, this is what we think might be happening.- Well every time we do one of these cases we learn something new and medical researchers moved on from the last time we did one of these cases. And so to stop that process would be concerning. Questions from the audience?- [Crowd Member] The safeguarding practices in NHS and the quality. Your opinion on what could be changed?'Cause I presume that you guys go to the safeguarding and you use that as evidence. So do you think we collect enough as soon as a patient's presented with certain issues? Or do you think there could be more done? You know, especially since we have a limited amount of expert witnesses. So yeah.- So I think it's about really the information collecting that happens at the hospital and whether the process could be improved or whether it's, in fact, how good it is.- I think that's a very difficult question to answer. I think different A&E departments, different NHS's are under different amounts of stresses and strains and I think this is a particularly challenging time for the NHS. You're hearing about striking workers, hearing about waiting lists, you're hearing about everything being put under pressure. So it wouldn't be a surprise for you to find in six to 12 months time that there had been missed opportunities to safeguard some children. Don't think that would surprise anybody. We know already there are high profile cases that are in the mainstream media about missed opportunities. And I don't imagine that the current stresses and strains of NHS are going to make that any better. I'm sure there are always opportunities to improve things. We now have particular safeguarding pediatricians in most hospitals. So we are making some people responsible for making sure that children who come through are assessed properly and rigorously and taken into that system. We are almost always will be accused of taking children into that system unnecessarily. And the balance between doing that necessarily and proportionately, the children coming through versus the pressures on getting the rest of the NHS working will always be slightly in conflict.- [Crowd Member] Deviating slightly, but do you see any similar difficulties in private children proceedings? I appreciate you don't really get too many medical experts in those, but obviously you might in certifications.- Well you might do if for example-- So the questions about private care procedures?- So basically it is slightly... So in public law, just to explain, it's called public law because it involves a public authority, the local authority intervening in a family's life to consider whether the child needs to be removed. So in public law you've got the local authority, you've got the mother invariably, the father or boyfriend, and you've got the child. In private law, it's effectively a carer against the other. So it doesn't involve the state. But nonetheless there is sometimes an overlap in private law cases where the local authority isn't involved, a parent might say that a child has been, I dunno, hit, bruising. Now that's going to be a different level of threshold because you'll have to decide, it's relatively unlikely, although not to say it's happened, that you would get an expert in private law proceedings. But if the child wasn't separately represented, then that'd have to be funded by the parent and therefore they'd be paying privately. So I think it is a very good question, but it's a much smaller subpool and then you are not necessarily dealing with the same imperatives of getting more than one expert. But you need to be, if you do get an expertise in, you're still going to need permission. If the child needs to be seen, you definitely need permission. And you got to make sure that the right expert is in because you don't want there to be a battle of experts,'cause that may not be a joint instruction.- So wait, so who pays for the whole system? Who pays for...?- In public law, ultimately the taxpayer pays because the local authority is paying for the local authority. We, Leslie and I, for the parents or for the child, in which case we're paid for by legal aid, which comes out of the tax system. If you're an intervener, then there may be a private contribution because it's a different scenario. But ultimately it's where you want your money to go. So it comes right back to what Leslie was saying at the beginning.- So you the audience are funding this system. So the question is, is it doing not what we want it to do, but is it doing what you want it to do? Is it protecting children, but doing that proportionally against the cost or the time left involved in investigating whether or not to protect those children? And is this the overriding imperative?- Good point to end on. Can I thank Jo and Owen for a fascinating talk.(crowd applauding)- Thank you.